FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 10507/03 
by Vladimir and Nina DOROCHENKO 
against Estonia

The European Court of Human Rights (Fourth Section), sitting on 5 January 2006 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr J. Casadevall
 Mr M. Pellonpää
 Mr R. Maruste
 Mr S. Pavlovschi
 Mr J. Borrego Borrego, 
 Mr J. Šikuta, judges,

and Mr M. O’Boyle, Section Registrar,

Having regard to the above application lodged on 27 March 2003,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Vladimir Dorochenko and Ms Nina Dorochenko, are Russian nationals, who were both born in 1949 and live in Smolensk, the Russian Federation. They are represented before the Court by Mr A. Arjupin, legal adviser of the Legal Information Centre for Human Rights in Tallinn, and Mr W. Bowring, barrister and professor of law at the London Metropolitan University. The respondent Government are represented by Mrs M. Hion, Director of the Human Rights Division of the Legal Department of the Ministry of Foreign Affairs.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

Mr Vladimir Dorochenko, the first applicant, was born in Ukraine. In 1951 he moved to Estonia together with his parents. In 1970 he married Ms Nina Dorochenko, the second applicant, who had been born in Estonia in 1949. Both applicants are of Russian origin.

The applicants have three children who all live in Estonia. Their daughter Yulia (born in 1971) is a stateless person. She has a permanent residence permit in Estonia. The applicants’ first son Sergey (born in 1975) is a Russian national. He too holds a permanent residence permit. The applicants’ second son Vitaly (born in 1983) is a Russian national and he holds a temporary residence permit in Estonia for five years (until 11 July 2006). At the time the application was lodged with the Court, he was living together with the applicants.

The first applicant’s mother who had had a permanent residence permit to live in Estonia died on 4 December 2004. His father (born in 1923), a Russian national, resides in Estonia on the basis of a permanent residence permit. The second applicant’s mother and the applicants’ grandchildren are also living in Estonia.

From 1969 to 1995 the first applicant served in the Soviet and Russian armed forces.

On 26 July 1994 Estonia and Russia concluded a treaty on the withdrawal of Russian troops from Estonian territory.

In 1995 until his assignment to reserve on 12 April 1995 (see below) the first applicant served as a senior midshipman in the Paldiski military unit. His duties included the dismantling of a nuclear reactor in Paldiski.

On 10 April 1995 the commander of the Paldiski military unit issued a decree by which the first applicant was assigned to the reserve as of 12 April 1995. He was discharged from the Paldiski military unit and sent to the Zadneprovsk military unit in Smolensk, Russia. According to the decree, it was decided to allocate financial means to the applicants and their two sons for their travel to Smolensk.

As the applicants did not have housing in Russia, the first applicant applied for a flat in Russia within the framework of an aid programme provided by the United States of America. On 10 April 1995 he signed a written commitment in this connection. The form of the commitment was in Russian. In the form, signed by the first applicant, it was stated that he wished to take part in the programme for providing housing for officers of the Russian armed forces. It was further stated that if he received housing in the context of the programme, he and his family would vacate the dwelling that was at their disposal in the Baltic country and that in the future he would be able to visit the Baltic countries only as a foreigner on general basis. Furthermore, it was stated that the applicant had no housing in Russia, that he had not paid anyone for the right to take part in the programme and that he was aware that the housing in the context of the programme would be provided free of charge. It was confirmed that the dwelling he possessed in the Baltic country had not been privatised or sold and that he had not received any payment for it.

On 20 April 1995 the first applicant submitted an application for taking part in the programme. In the application form, signed by the first applicant, it was stated that if he were to receive a dwelling in the context of the aid programme, he, together with his family, would vacate the dwelling that was at his family’s disposal in the Baltic country and not seek to stay in the Baltic countries as permanent residents. It further stated that in the future he would be able to visit the Baltic countries only as a foreigner. It was stated that he and his family did not possess a dwelling in the Baltic countries and that they would not seek to privatise or sell the dwelling at their disposal and that they had not received and would not receive any payment for vacating their current dwelling. It was also stated that he confirmed that at the moment of signing the application he did not have housing in Russia and that he had not paid anyone for the right to take part in the programme. It was stated that he was aware that if all the preconditions for taking part in the programme were fulfilled and he were to comply with all the conditions and requirements of the programme, he would receive money for buying a dwelling. Finally, it was stated that he was also aware that the participation in the programme was voluntary and that if it were to prove unsuccessful, his place in a municipal waiting list of applicants for dwelling would be retained.

On 21 April 1995 the first applicant concluded an agreement in Smolensk with the company Smolenskiy DSK to the effect that he would pay an equivalent of 25,000 US dollars and receive an apartment at Popov Street 120-349 in Smolensk. The agreement was to become valid if the first applicant were to get money in the context of the programme for granting military reserve officers certificates for obtaining housing.

On 4 July 1995 the applicants submitted an application for a residence permit in Estonia.

On 31 August 1995 the mayor of Smolensk allocated apartment no. 337 at 120 Popov Street to the first applicant and ordered that he be registered as its owner.

On 18 December 1995, the first applicant was entered in the list of staff of the military unit in Smolensk.

On 11 July 1996 the applicants were granted temporary residence permits in Estonia for five years.

As from 1997 the first applicant was working as a guard in Estonia. The second applicant was working as a housemaid, also in that country, as from 1999.

In 1999 the Foreigners’ Act (Välismaalaste seadus) was amended so as to exclude the possibility of issuing or extending residence permits to persons who had committed themselves to leaving Estonia or who had received an accommodation abroad within the framework of an international aid programme.

On 28 November 2000 the second applicant privatised (purchased on favourable conditions from the municipality) an apartment no. 56 at 1 Muuli Street in Paldiski. On 13 February 2001 the second applicant, acting as her son Sergey’s proxy, privatised an apartment no. 10 at 1 Kivi Street in Paldiski.

On 30 April 2001 the applicants applied for extensions of their residence permits. On 2 November 2001 the Minister of the Interior issued orders by which the applicants were refused extensions. The refusal was based on two grounds. Firstly, the first applicant had served as a professional member of the armed forces of a foreign country and had retired. This ground applied also to the second applicant as a family member of the first applicant. Secondly, the applicants had committed themselves to leaving Estonia and had received accommodation abroad within the framework of an international aid programme.

The applicants submitted a complaint to the Tallinn Administrative Court (Tallinna Halduskohus). They contested the retroactive application of the provisions of the Foreigners’ Act so as to refuse extensions of residence permits of persons who had committed themselves to leaving Estonia and who had received an accommodation abroad within the framework of an international aid programme. The Foreigners’ Act did not contain the disputed provisions at the time when the applicants participated in the aid programme and received accommodation in Russia. They argued that their legitimate expectation rights and the principle of legal certainty had been violated. They also maintained that their commitment to leave the country had not been made to the Estonian authorities. They further complained that their right to family and private life had been violated.

On 8 May 2002 the Tallinn Administrative Court dismissed the complaint. It observed that the Foreigners’ Act provided that the residence permits of former professional members of armed forces of a foreign country and of their family members could be extended only in exceptional circumstances. Although the Minister of the Interior’s orders did not state why such an exception did not apply in the applicants’ case, the Administrative Court found the orders to be lawful, since the Foreigners’ Act in any case did not permit extensions of residence permits of persons who had committed themselves to leaving Estonia and who had received accommodation abroad within the framework of an international aid programme. It dismissed the applicants’ claim that their legitimate expectation rights and the principle of legal certainty had been violated, holding that the principle of legitimate expectation could not be extended so far as to prevent the legislator from making any changes to the legislation in force at any point of time. The Administrative Court rejected the complaint concerning the violation of the right to family and private life, finding that the applicants could enjoy family life in the country of which they were nationals and in which they had undertaken to settle, when consenting to participate in the aid programme.

In an appeal to the Tallinn Court of Appeal (Tallinna Ringkonnakohus) the applicants stressed that the first applicant’s elderly parents, whom the applicants had to take care of, lived in Estonia. The second applicant had been born in Estonia and had been living there ever since. The first applicant had lived in Estonia for fifty years. They supported financially their children, who lived in Estonia, including one child who lived together with them. Also their grandchildren lived in Estonia. The first applicant had opted for the aid programme and adopted Russian nationality only because of the lack of certainty as to the possibility to remain living in Estonia.

On 6 January 2003 the Tallinn Court of Appeal upheld the judgment of the Administrative Court. The Court of Appeal noted that in his written consent to take part in the aid programme, the first applicant had stated that the size of his family was four persons, including the two sons. Thus, the first applicant had known already at the time he had been consenting to take part in the aid programme that his parents would remain in Estonia.

On 20 May 2003 the Supreme Court (Riigikohus) upheld the judgments. It reiterated that on 26 July 1994 Estonia and the Russian Federation had concluded a treaty concerning the withdrawal of the Russian troops from Estonia. According to the treaty the Russian military servicemen and their family members had to leave Estonia. The United States aid programme had been set up to facilitate the resettling of the military servicemen. The fact that Estonia had not been a party to the programme, did not, in the Supreme Court’s view, exclude the legitimacy of the enactment and application of the provision of the Foreigners’ Act, under which the applicants had been denied the extensions of the residence permits. The Supreme Court agreed with the opinion of the Court of Appeal that in case the first applicant’s parents wished to stay in Estonia, the grown-up children of the applicants could take care of them.

On 5 September 2003 the Citizenship and Migration Board (Kodakondsus- ja Migratsiooniamet) issued a precept to the applicants requiring them to leave Estonia. The applicants complied with the precept and cancelled their registration of residency in Paldiski. According to the population registration database the applicants left Estonia on 25 November 2003 and settled in Smolensk. In the applicants’ submission they had to leave Estonia in December 2003, after the police had entered their flat in November in order to execute the precepts by force.

B.  Relevant domestic law

Section 12(4) of the Foreigners’ Act (Välismaalaste seadus) listed the instances in which a residence permit could not be issued or extended. Section 12(4)(7) provided that a permit could not be issued or extended, if the foreigner applying for it had served as a professional member of the armed forces of a foreign state or had been assigned to the reserve forces thereof or had retired therefrom. Section 12(4)(14) provided that a residence permit could also not be issued or extended for the spouse and minor children of a person referred to in section 12(4)(7). Section 12(5), however, provided that, as an exception, a temporary residence permit could be issued or extended for the foreigner concerned if this was not excluded on some other grounds listed in the same provision.

Section 12(9)(4) of the Foreigners’ Act provided that a residence permit could not in any case be issued or extended, if the person concerned had, inter alia, committed himself or herself to leaving Estonia or had received accommodation abroad within the framework of an international aid programme. This provision was adopted on 21 September 1999 and entered into force on 1 October 1999. It was subject to an amendment in 2001, which does not appear to have relevance to the present case.

C.  Aid Programme

According to the Government of Estonia, in April and July 1993 the President of the United States of America and the President of the Russian Federation agreed to undertake a project for providing up to 5,000 units of housing for Russian military officers demobilized from the Baltic countries or elsewhere outside Russia.

The Government submitted to the Court a copy of “Russian Military Officer Resettlement Program. Housing Certificate Program” and “Russian Military Officer Resettlement Program. Housing Construction Program. Information Digest”. These information materials appear to have been handed out by the American side in the Aid Programme to the participating Russian officers.

According to the information materials, the Russian Military Officer Resettlement Programme had been set up in order to provide up to 5,000 units of housing for Russian military officers demobilised mainly from the Baltic countries. About a half of the units of housing had to be constructed, whereas the rest of the housing units had to be provided through a housing certificate programme.

In order to take part in the Programme, the officers had to present a discharge order, passport, official verification of the family size and composition, official verification of current residence in the Baltics and a signed application for participation in the programme containing declarations that upon obtaining housing under this programme, the officer and his family would vacate their present dwelling(s) in the Baltic countries and would not seek permanent residency in any of the Baltic Republics, and from then on would enter the Baltic Republics only as foreign guests. The officers had to declare that they and their families did not own housing in Russia nor would they own, privatise or sell any dwellings in the Baltics and would not receive any payments in connection with vacating any dwelling. The officers declared their understanding that if they were found to be eligible to participate in the Programme and if all Programme’s terms and conditions were met, they would receive appropriate apartments (in the framework of the housing construction programme) or financial assistance for the purchase of housing units (in the framework of the housing certificate programme).

In order to obtain a registration of residence (propiska) in the Passport Desk for their new apartment, the officers had to present their Russian Passport and the Russian passports for all family members along with proof of cancellation of their registration of residency (vypiska) for all members of the family in the Baltics. Officers had to move in within 45 days after notification by the Russian Offices of Social Assistance or by the local administration, otherwise their apartments could be reassigned.

Participation in the Programme was voluntary; no enrolment fee was required.

D.  The Estonian-Russian treaties

After the independence of the Republic of Estonia was restored on 20 August 1991, the Soviet troops remained in the country. Following the dissolution of the Soviet Union, the Russian Federation assumed jurisdiction over its armed forces. On 26 July 1994 Estonia and Russia concluded a treaty on the withdrawal of the Russian troops from the Estonian territory and on the conditions of their temporary stay in Estonia. On the same day, Estonia and Russia concluded an agreement concerning the social guarantees to the retired military personnel of the armed forces of the Russian Federation on the territory of Estonia. The Treaty and the Agreement entered into force on 2 February 1996, having been subject to temporary application from the day of signing, that is, from 26 July 1994.

According to the Treaty, the Russian Federation undertook to withdraw from Estonia, by 31 August 1994, all military personnel who were in the active service of the Russian armed forces. Family members of the military personnel in active service who did not have a dwelling in Russia were allowed to remain in Estonia for up to one year.

The Agreement provided that retired military personnel, i.e. persons discharged from the army service and receiving pension, and their family members could apply for residence permit in Estonia. The Estonian Government could deny a residence permit due to a threat to national security.

On 30 July 1994 an agreement on the procedure and terms for the dismantling of the nuclear reactors, and for ensuring nuclear and radiation safety on the Pakri peninsula of the Republic of Estonia was concluded between the Government of Estonia and the Government of the Russian Federation. This Agreement entered into force on the day of its signing and it remained effective until 30 September 1995. According to the Agreement, work for the dismantling of nuclear reactors and ensuring nuclear and radiation safety was to be performed by specialists of the Russian Federation. Estonia undertook to give temporary residence permits to the specialists and their family members for the period of validity of the agreement. In cases where the postponement of the departure was required, including the absence of the housing in Russia, the validity of the residence permits of the family members could be extended until 15 May 1996. After the expiry of the residence permits the specialists together with their family members had to leave Estonia.

COMPLAINTS

1.  The applicants complained under Article 8 of the Convention that their right to respect for their private and family life had been violated, as they had been refused extensions of their residence permits in Estonia.

2.  They complained under Article 3 that the decision to refuse extension of the residence permits together with a real risk of deportation amounted to inhuman and degrading treatment.

3.  The applicants alleged a violation of Article 6 in that the national courts had failed to take into account all the evidence submitted and applied national law incorrectly.

4.  They argued that Article 13 had been violated, as the Estonian courts had failed to enforce the applicants’ rights under Article 8 in conjunction with Article 14.

5.  According to the applicants, Article 14 had also been violated in conjunction with Article 8. They considered that they had been discriminated against because of their ethnic background and social origin. Moreover, the second applicant submitted that she had been discriminated against on the ground of her sex, as she had been denied an extension of the residence permit because of her husband’s former profession. Both applicants complained, further, that they had been discriminated against, as they had been prevented from acquiring Estonian nationality and permanent residence permits.

6.  They maintained that Article 1 of Protocol No. 1 to the Convention in conjunction with Article 13 had been violated. By being turned into illegal residents they had been effectively precluded from enjoyment of their possessions.

7.  The applicants submitted that Article 4 of Protocol No. 4 to the Convention prohibiting collective expulsion of aliens had been violated, since altogether about 117 former Soviet army servicemen and their family members would be denied extensions of their residence permits.

8.  The applicants complained that their rights guaranteed under Article 1 of Protocol No. 7 to the Convention had been violated. They were deprived of a possibility to prevent their expulsion and were unable to submit reasons against it.

THE LAW

1.  The applicants complained that their right to respect for their private and family life had been violated, as they had been refused extensions of their residence permits in Estonia, with no regard to the fact that they had been living there for more than fifty years and that all their close relatives reside in that country. They relied on Article 8 of the Convention, which reads:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

1.  Arguments before the Court

(i)  The Government

The Government submitted that the applicants, by undertaking a commitment to leave Estonia, had deprived themselves of any possibility of living in that country and of receiving residence permits. The applicants had had no reason to expect that they could get a free apartment in the context of the aid programme without fulfilling their own commitments or without any consequences. The applicants had had to foresee the possibility that they would have to choose another country of residence. The Government were of the opinion that the authorities could not be held responsible for the applicants’ subsequent change of mind.

Moreover, in the Government’s submission the refusal to extend the applicants’ residence permits had been necessary in a democratic society for the sake of the interests of national security. Furthermore, the applicants had been obliged to leave Estonia according to the terms of the Treaty and the Pakri peninsula agreement.

The Government rejected the applicants’ allegation that they had been forced to participate in the aid programme as they had felt anxiety about their future. The aid programme had been concluded between the United States of America and the Russian Federation; the Estonian authorities did not have any possibility to exert pressure on persons to participate in the programme. The Estonian authorities received only in 2001 the lists of persons who had participated in 1995 in the aid programme.

The Government also submitted that the Convention did not guarantee a right to a residence permit in a foreign country. Since 1995, when the first applicant had lodged the application to participate in the aid programme, it should be concluded that he wished to resettle in Russia and to choose that country as the place of residence for him and his family. The applicants had not put forward any essential reasons as to why it would be impossible for them to live their family life in Russia, the country of which they were nationals.

(ii)  The applicants

According to the applicants, they had developed strong personal, social and economic ties with Estonia. Estonia was the motherland of the second applicant. The applicants argued that their participation in the aid programme had not created a close relationship with their country of nationality.

Furthermore, in the applicants’ submission the fact that they had been granted residence permits for five years in 1996 demonstrated that they had not represented any threat to the legitimate interests of Estonia. Neither had their removal from Estonia been necessary in a democratic society.

In the applicants’ submission it was obvious that the first applicant did not have an intention or an obligation to leave Estonia, considering the applicants’ ties with Estonia. Their participation in the aid programme had been caused by fear and uncertainty. Considering the uncertain status of former Soviet military personnel, the first applicant had undertaken steps in order to provide his family with some guarantees. The applicants had believed that if the situation in Estonia improved, they would be able to refuse participation in the programme and give up the apartment received. They had never been informed that participation in the programme would exclude the possibility to obtain residence permits in Estonia. If such a requirement had been envisaged by the aid programme, the first applicant would not have participated in it. The applicants had never been informed by the Estonian authorities that they had an obligation towards Estonia to leave the country. Moreover, the second applicant had never signed any document or application where she had consented to participate in the programme.

The applicants noted that the Estonian authorities had granted “a huge number” of residence permits to persons in a situation similar to that of the applicants. These persons also had taken part in the aid programme and received dwellings in Russia. However, the participation in the programme had not resulted in the refusal to extend the residence permits of these persons.

The applicants submitted that the first applicant had suffered a heart attack on 4 October 2004. The first applicant’s mother had died on 4 December 2004 in Estonia, having been deprived of the support of the applicants. The first applicant’s father of an advanced age also had serious health problems.

2.  The Court’s assessment

The Court reiterates that the Convention does not guarantee the right of an alien to enter or to reside in a particular country. However, the removal of a person from a country where close members of his family are living may amount to an infringement of the right to respect for family life as guaranteed in Article 8 § 1 of the Convention (see Boultif v. Switzerland, no. 54273/00, § 39, ECHR 2001-IX).

The Court recalls that in the case-law of the Convention organs concerning expulsion and extradition measures the main emphasis has consistently been placed on the aspect of “family life”, which has been interpreted as encompassing the effective “family life” established in the territory of a Contracting State by aliens lawfully resident there, it being understood that “family life” in this sense is normally limited to the core family (see Slivenko v. Latvia [GC], no. 48321/99, § 94, ECHR 2003-X, with further references).

The Court observes that the case-law has consistently treated the expulsion of long-term residents under the head of “private life” as well as that of “family life”, some importance being attached in this context to the degree of social integration of the persons concerned (see Slivenko, cited above, § 95).

As regards the specific circumstances of the present case, the Court first notes that it has no reason to doubt that the applicants had a family life in Estonia within the meaning of Article 8 of the Convention. It observes, however, that the applicants voluntarily participated in the aid programme in the context of which they decided to leave Estonia and to resettle in Smolensk, Russia, while their grown-up children, the first applicant’s parents and the second applicant’s mother continued to live in Estonia.

The first issue arising is whether the applicants must be considered to have waived any right that they had under Article 8 of the Convention to maintain their residence in Estonia. According to the Court’s case-law the waiver of a right guaranteed by the Convention must be made in an unequivocal manner and must not run counter to any important public interest (Håkansson and Sturesson v. Sweden, judgment of 21 February 1990, Series A no. 171-A, p. 20, § 66 and Nagula v. Estonia (dec.), no. 39203/02, 25 October 2005).

In this regard the Court notes that the applicants were refused residence permits in Estonia on 2 November 2001. Before that date the first applicant had, on 10 April 1995, signed a written commitment to leave Estonia in connection with the aid programme. According to a decree issued by the commander of the Paldiski military unit on the same date, the first applicant had been assigned to the reserve and sent to the Zadneprovsk military unit in Smolensk, Russia. By the same decree financial means for his family’s travel to Smolensk had been allocated. On 20 April 1995 he had submitted a formal application for taking part in the aid programme. In the application he had indicated that his family consisted of four persons. On 21 April 1995 he had concluded a purchase agreement for an apartment in Smolensk, subject to his obtaining funding through the aid programme. This condition appears to have materialised by 31 August 1995, when the Mayor of Smolensk ordered that he be registered as the owner of the apartment. Furthermore, on 18 December 1995 the first applicant had been entered in the list of staff of the military unit in Smolensk.

The Court takes note that on 11 July 1996 the applicants were granted residence permits in Estonia for five years on the basis of their applications of 4 July 1995. However, it finds that this does not alter the fact that already in April 1995 they had undertaken to leave Estonia. The Court notes in this context that in the Government’s submission the Estonian authorities received only in 2001 the lists of persons who had participated in 1995 in the aid programme.

The Court is not persuaded by the applicants’ argument that they had never been informed by the Estonian authorities that they had an obligation to leave the country. It must have been clear from the context in which the applicants agreed to participate in the aid programme that the object of the programme was to facilitate the withdrawal of Russian troops from, inter alia, Estonia. The different elements in this process were inextricably intertwined; the grant of the financial aid to the applicants in order to acquire an apartment in Russia was directly connected with the obligation of the Russian Federation to withdraw its troops from Estonia under the Treaty and with the applicants’ commitment to leave the country.

Furthermore, the Court is not convinced by the applicants’ allegation that the second applicant had never consented to participate in the aid programme and to leave Estonia. First, the Court notes that there is no indication that the second applicant raised this issue during the domestic judicial proceedings. On the contrary, as appears from the domestic courts’ judgments, the applicants submitted to the courts that they had participated in the aid programme. Furthermore, in the application to the Court, signed by both applicants on 16 June 2003, it was submitted that “[t]he applicants concede that they participated in the program.” While it is true that the written commitment, the application to take part in the programme and the purchase agreement for the apartment were signed only by the first applicant, the Court cannot but conclude that these decisions were taken jointly by both applicants.

The Court considers that by acquiring an apartment in Russia with the assistance of financial aid obtained under the resettlement programme, after having accepted the conditions for taking part in the programme including the commitment to leave Estonia, the applicants had completed a substantial part of the agreement concluded under the aid programme designed for their benefit. In return, they were obliged to vacate their dwelling in Estonia, not to seek to stay in Estonia as permanent residents and to visit the country, if they so wished, only as foreigners on a general basis. The Court considers the applicants’ waiver of rights to be established irrespective of the fact that they failed subsequently to fulfil all their undertakings under the resettlement agreement, which could not reasonably found any legitimate expectation on their part to remain in Estonia permanently. It finds that the respondent State cannot be held responsible for the applicants’ subsequent change of mind. Otherwise, if the possibility of resiling from a waiver of rights at any point in time were to be accepted, legal certainty would be undermined and the concept of waiver would become an empty notion. The Court finds, on the evidence before it, in particular the applicants’ express declarations and the steps they took to honour their part of the resettlement agreement, that they must be considered to have unequivocally waived any rights they may have had under Article 8 to remain in Estonia.

Furthermore, having regard to the Estonian-Russian troops withdrawal treaty, the Pakri peninsula agreement and the applicants’ commitment, the Court considers that the waiver does not appear to run counter to any public interest.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2.  The applicants complained that the decision to refuse extensions of the residence permits together with a real risk of deportation amounted to inhuman and degrading treatment. They relied on Article 3 of the Convention, which reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court reiterates that Article 3 of the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV). However, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (see Valašinas v. Lithuania, no. 44558/98, § 101, ECHR 2001-VIII).

As regards the present case, the Court finds that the applicants have failed to substantiate convincingly that they had been subjected to any treatment that could be considered to fall within the scope of Article 3. Moreover, there is no evidence that the applicants faced or face such a risk.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3.  The applicants alleged that the national courts had failed to take into account all the evidence submitted and applied national law incorrectly. They relied on Article 6 of the Convention, paragraph 1 of which, in so far as relevant, reads:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] ... tribunal established by law...”

The Court reiterates that decisions regarding the entry, stay and deportation of aliens do not involve the determination of an applicant’s civil rights or obligations or of a criminal charge against him, within the meaning of Article 6 § 1 of the Convention (Maaouia v. France [GC], no. 39652/98, § 40, ECHR 2000-X). It finds also in the present case that the proceedings concerning the issuing and extension of residence permits and the subsequent review thereof in the administrative court proceedings did not entail a “determination of ... civil rights and obligations or of any criminal charge against...” the applicants and, therefore, Article 6 § 1 is inapplicable.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

4.  The applicants were of the opinion that, since the Estonian courts had failed to enforce their rights under Article 8 in conjunction with Article 14, the authorities had violated Article 13 of the Convention. The last provision reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court reiterates that Article 13 of the Convention requires the provision of a domestic remedy allowing the competent “national authority” both to deal with the substance of the relevant Convention complaint and to grant appropriate relief (see Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, p. 47, § 120). The “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000-XI).

The Court notes that the applicants had a right to challenge the authorities’ refusal to extend their residence permits before an administrative court, which they, in fact, did. Furthermore, following the applicants’ appeals, their complaints were adjudicated by the Court of Appeal and by the Supreme Court. The domestic courts were empowered to examine the merits of the applicants’ complaints and the judgments provided sufficient reasoning concerning the complaints. In the light of all the material in its possession, the Court finds that this discloses no appearance of a violation of Article 13 of the Convention.

Even assuming that the applicants had an arguable claim for the purposes of Article 13, it follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

5.  The applicants complained that Article 14 of the Convention had been violated in conjunction with Article 8. They considered that they had been discriminated against because of their ethnic background and social origin. The second applicant also complained that she had been discriminated against on the ground of her sex, as she had been denied an extension of the residence permit on the ground of her husband’s former profession. Both applicants complained, further, that they had been discriminated against, as they had been prevented from acquiring Estonian nationality and permanent residence permits. Article 14 of the Convention, invoked by the applicants, provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

As regards the complaint concerning the fact that the applicants had been prevented from acquiring Estonian nationality, the Court recalls that the Convention does not guarantee a right to nationality (see Slivenko v. Latvia (dec.) [GC], no. 48321/99, § 77, ECHR 2002-II).

In respect of the remainder of the complaints under this item, the Court finds, in the light of the conclusion that the applicants had waived any rights they may have had to remain in Estonia (see above), that these complaints are also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

6.  The applicants maintained that Article 1 of Protocol No. 1 to the Convention in conjunction with Article 13 had been violated. By being turned into illegal residents they had been effectively precluded from enjoyment of their possessions. Article 1 of Protocol No. 1 to the Convention reads:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...”

The Court considers that the applicants’ allegation concerning a violation of their property rights is unsubstantiated. It finds no indication that the applicants were in any way hindered with regard to enjoyment of their property.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

7.  The applicants submitted that, since altogether about 117 former Soviet army servicemen and their family members would be denied extension of their residence permits, Article 4 of Protocol No. 4 to the Convention had been violated. This provision reads as follows:

“Collective expulsion of aliens is prohibited.”

The Court observes that the applicants received individual decisions by which they were refused extensions of their residence permits. Their complaints were individually examined by the administrative courts whereby they had an opportunity to present their arguments. The Court finds no indication of a collective expulsion within the meaning of Article 4 of Protocol No. 4 to the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

8.  The applicants complained that they were deprived of a possibility to prevent their expulsion and were unable to submit reasons against it, in violation of Article 1 of Protocol No. 7 to the Convention, paragraph 1 of which reads:

“An alien lawfully resident in the territory of a State shall not be expelled therefrom except in pursuance of a decision reached in accordance with law and shall be allowed:

(a)  to submit reasons against his expulsion,

(b)  to have his case reviewed, and

(c)  to be represented for these purposes before the competent authority or a person or persons designated by that authority.”

Leaving aside the question whether the applicants were expelled from Estonia within the meaning of the above provision and whether it should be considered that they waived their rights, the Court notes that the applicants’ case was adjudicated by an administrative court and, following their appeals, also by a court of appeal and by the Supreme Court. At all levels it was open to them to submit reasons against the authorities’ refusal to extend their residence permits. In the light of all the material in its possession, the Court finds that this complaint does not disclose any appearance of a violation of Article 1 § 1 of Protocol No. 7 to the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Nicolas Bratza 
 Registrar President

DOROCHENKO v. ESTONIA DECISION


DOROCHENKO v. ESTONIA DECISION